Kable v State of New South Wales

Competency of motion 9The appellant challenged the Court's power to vary the orders in the way sought by the State on the ground that the motion was out of time. That submission relied upon the limited circumstances in which the Court can set aside or vary orders once entered: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), Pt 36, Div 4. The State did not submit that the judgment or orders of the Court had been given, entered or made irregularly, illegally or against good faith, for the purposes of r 36.15. Nor was it suggested that there was any clerical mistake or error within the terms of r 36.17. The State accepted that the application needed to be brought within 14 days after the judgment or order was entered and that that time was not extendable: r 36.16(3A) and (3C). It also accepted that the orders having been entered in the Court's computerised record system on the day they were made, the notice of motion was filed two days out of time. Rather, the State called in aid the power to dispense with the need for filing a notice of motion in the form prescribed where notice had been given to the Court and to the appellant the day after the judgment was entered. That power is to be found in s 14 of the Civil Procedure Act 2005 (NSW): see Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [11] and AT v Commissioner of Police (NSW) (No 2) [2010] NSWCA 337 at [7]. 10In the event that the Court had a discretion to consider the motion, the appellant submitted that it should not be exercised favourably to the State which, as a model litigant, should be expected to know the Rules and comply with them. That proposition was reinforced, the appellant submitted, by the fact that, on 10 August 2012, being the day after the letter from the Crown Solicitor, the President's Associate had responded, noting that the proper course was to "file a motion promptly with an affidavit and submissions in support". It may further be noted that the judgment, in accordance with conventional practice, contained the following note immediately after the orders were set out on the front sheet: "[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]" 11There is a further factor which militates against an exercise of the discretionary power in favour of the State. The letter of 9 August from the Crown Solicitor stated that the Court had "heard no submissions on costs, and the State respectfully seeks to be heard on that order". While it was strictly true that the Court had heard no submissions on costs, nevertheless, the orders sought by the appellant in his notice of appeal and confirmed in his written submissions included the following: "6. The respondent is to pay the appellant's costs of the actions and proceedings at first instance and on appeal." 12There are undoubtedly circumstances in which the orders sought on an appeal, and particularly where there are notices of contention or cross-appeals, may give rise to a variety of possible outcomes. Further, where there are claims for damages, there is always the possibility that there have been offers of settlement which may affect the appropriate costs orders. In both circumstances, it is common practice for counsel to invite the court to reserve questions of costs until the substantive issues have been determined. That did not happen in the present case. Absent such a request, in circumstances where the usual orders as to costs are well understood, namely that, pursuant to UCPR, r 42.1, they are likely to follow the event, the court will usually assume that the standard costs order should be made. 13Although the State considered that there were separate issues which needed to be separately considered in respect of its liability to the appellant, as will appear below, that was not so. It would have been sufficient for the Court to consider whether the appellant was entitled to succeed on any cause of action and, if so satisfied, to give reasons for that conclusion without addressing other causes of action which might not be made out. (There was no submission that the quantum of damages would depend upon which cause of action was made good.) Similarly, the fact that there were offers of compromise which, in the event that damages were still to be assessed, the parties did not wish to disclose, could have been noted at the original hearing. 14As a general rule, any party which would seek to be heard in opposition to the usual order as to costs should raise the issue with the Court at the hearing of the appeal. If it does not, and seeks to be heard with respect to costs after orders have been made, even if the application is made in a timely fashion, that party should expect to have to explain and justify its failure to take advantage of the opportunity to address on costs at the hearing of the appeal and, if there were reasons for not doing so, why those reasons were not explained to the Court on the hearing of the appeal. No such explanation was provided in this case. 15Nevertheless, for reasons which will appear below, the interests of justice support an order dispensing with the requirement for the filing of a notice of motion in the prescribed form with respect to the costs of the trial. For that purpose, the letter from the Crown Solicitor of 9 August 2012 should be deemed to be appropriate notice of the matter to which it referred. Reference to "the matter" in the singular is deliberate: the letter referred only to "order 3(b) made yesterday, relating to the costs of the proceedings to date". The letter sought to raise two issues, namely: (a) "a significant proportion of the costs incurred by the plaintiff will be attributable to factual inquiries which related solely to causes of action on which the plaintiff failed", and (b) the existence of "earlier costs orders which have been made ..., which presumably are not displaced by the order made yesterday". 16Although the reference to "the costs of the proceedings to date" might, on one view, extend to the costs of the appeal, read in context they were directed to order 3(b), which concerned the costs in the Court below. Accordingly, so far as the proposed variation of the order as to the costs of the appeal is concerned, no notice was given prior to the filing, out of time, of the notice of motion. Accordingly, no basis is shown for entertaining that application. 17Given the circumstances referred to above and the further matters addressed below in respect of the costs of the appeal, even if the letter of 9 August could be treated as an application to vary order 5, the dispensing power in that respect should not be exercised in favour of the State.

Costs of the trial proceedings 18The State sought to have the order with respect to the costs of the trial varied for the following reasons. (a) To the extent that interlocutory steps in the proceedings had resulted in particular costs orders, the order should be varied so as to exclude those costs. (b) The trial proceedings (commenced 16 years ago) had followed a tortuous course and involved multiple issues on some of which, including the causes of action in malicious prosecution and abuse of process, the plaintiff had wholly failed. Whilst he would ultimately be compensated for the delay in the form of pre-judgment interest on any damages awarded for false imprisonment, he should not obtain the benefit of a costs order in respect of procedures which were doomed to fail. (c) There had been offers of compromise exchanged over the years, whose final impact could not be determined until the verdict was quantified and should not be publicly revealed at this stage. 19The appellant's submissions took issue with both factual assertions as to procedural steps taken in the Court below and inferences which might properly be drawn from those steps. It is neither appropriate nor desirable that this Court trawl through the relevant documentation and form a view as to the reasonableness or otherwise of particular steps taken and as to which party was responsible for the inordinate lapse of time during which the proceedings have been on foot. Suffice it to say that the State's submissions raise a real question as to whether it is appropriate to make any order as to the costs of the trial at this stage, let alone how those costs should properly be apportioned. 20These considerations raise at least a possibility that injustice has been done to the State in the order made on 8 August 2012 with respect to the costs of the trial. The appropriate course is to set aside that order and in lieu thereof direct that the costs below be determined by the trial court on the remitter.

Costs of appeal 21For reasons already given, the motion to vary order 5, ordering the State to pay the appellant's costs of the appeal, is not properly before the Court because no form of notice raised the matter within the relevant period. 22Against the possibility that a different view might be taken as to the powers of the Court to consider the application, the submissions of the parties should be noted. 23The primary basis upon which the State sought variation of order 5 was that the appellant was successful on only one cause of action, namely that for false imprisonment and, even in that respect, the inadequacies of his original submissions led to an adjournment of the hearing to allow for the service of notices under s 78B of the Judiciary Act 1903 (Cth), the preparation of further submissions and the fixing of a further hearing date. In respect of the other two causes of action, the State noted that the appellant had been entirely unsuccessful. 24Each of these factors was known to the Court when it made its original orders in respect of the costs of the appeal. The Court approached the matter on the basis that the "event" was the judgment on liability in favour of the appellant. It was not considered appropriate to divide the appeal according to the various issues, which might or might not have been determined, depending on the approach the Court ultimately took in its reasons. Further, the additional costs incurred by the adjournment, in the context of a complex and novel set of issues in respect of unlawful imprisonment, was thought not to warrant any special apportionment of costs between the appellant and the State. 25There was nothing in the submissions for the State in respect of the costs of the appeal which raised any new issue or put any of the known factors in a new light. Accordingly, no injustice should be seen to result from the failure to permit the State to reopen order 5.

Conclusions 26The Court should make the following orders: (1) With respect to the application to vary order 3(b) made on 8 August 2012: (a) dispense with the requirement to give notice of the motion notified in the letter of the Crown Solicitor of 9 August 2012 in the prescribed form; (b) vacate the order made on 8 August 2012 and in place thereof - order that the question of the costs of the proceedings to date in the Common Law Division be dealt with by the judge to whom the matter is remitted for the assessment of damages pursuant to order 4 made on 8 August 2012. (2) Otherwise dismiss the respondent's notice of motion filed on 24 August 2012. (3) Make no order as to the costs of the motion. 27CAMPBELL JA: I agree with Basten JA, and with the additional observations of Allsop P. 28MEAGHER JA: I agree with Basten JA and with Allsop P's additional comments 29McCLELLAN CJ at CL: I agree with Basten JA.

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